Blackshield and Williams Australian Constitutional Law and Theory

Preface to the Eighth Edition
Acknowledgments
Table of Extracts
Table of Cases
Table of Statutes
PART 1: AUSTRALIAN CONSTITUTIONALISM
Chapter 1: Foundations
1. Australia: A Constitutional Hybrid
2. Political and Legal Constitutionalism
3. Why are Constitutions Obeyed?
4. Rule of Law
5. Separation of Powers
Chapter 2: Origins and Influences
1. The Evolution of the Westminster Constitution
(a) Magna Carta
(b) Parliament
(c) Star Chamber and Common Law Courts
(d) The Glorious Revolution
2. Westminster Government
(a) Responsible and Representative Government
(b) Parliamentary Sovereignty
(c) Constitutional Conventions
(d) The Courts, Property and Liberty
3. The Constitution of the United States
(a) Divisions of Power – Horizontal and Vertical
(b) Judicial Review
Chapter 3: Path to Independence
1. Colonisation
2. The Colonial Legislatures
3. Federation
4. The Colonial Legacy
5. The Statute of Westminster
(a) Extraterritoriality
(b) Repugnancy
6. Appeals to the Privy Council
7. The Australia Act
8. Popular Sovereignty
Chapter 4: Indigenous Peoples
1. Introduction
2. The Constitution and the Franchise Before Mabo (No 2)
3. The Significance of Mabo (No 2)
4. Indigenous Sovereignty
(a) Perspectives on Sovereignty
(b) The United States
(c) Australia
5. Self-determination

PART 2: INTERPRETATION
Chapter 5: Constitutional Interpretation
1. Literalism, Legalism and Judicial Choice
2. The Jumbunna Principle
3. The Dead Hand and the Living Tree
(a) Use of Historical Materials
(b) The Intention of the Framers
(c) Textual Originalism and Evolution
(d) Dynamic Interpretation
(e) Strategic Compromise?
4. Legal Culture, Gender and ‘Different Voices’
Chapter 6: Statutory Interpretation and Constitutional Law
1. Intention and the Tool to Ascertain It
2. The Constitutional Setting
3. The Principle of Legality
4. Disposing of Constitutional Cases
(a) Judicial Parsimony
(b) Reading Down and Severance
5. Constitutional Law and Statutory Drafting
PART 3: THE FEDERAL SYSTEM
Chapter 7: Federalism and the Engineers Case
1. Australian Federalism
2. The Division of Legislative Power
3. Implied Immunity of Instrumentalities
4. Reserved State Powers
5. The Engineers Case
6. The Significance and Legacy of Engineers
Chapter 8: Australian Federalism in Practice
1. Intergovernmental Relations
2. Co-operative Schemes
3. Referrals of Power
4. Former Powers of the United Kingdom Parliament
5. Federal Financial Relations
6. Equal Treatment of States
Chapter 9: The States
1. State Constitutions
2. State Legislative Power
(a) Peace, Welfare and Good Government
(b) Constitutional Amendment
3. Manner and Form Requirements
4. Alternative Procedures
Chapter 10: The Territories
1. The Territories
2. Scope of the Territories Power

3. Limits on the Territories Power
4. Self-government
Chapter 11: Inconsistency between Commonwealth and State Laws
1. Meaning of ‘Invalid’, ‘Prevail’ and ‘Laws’
2. The Concept of Inconsistency
3. Manufacturing Inconsistency
4. Manufacturing Consistency
PART 4: THE EXCUTIVE AND EXECUTIVE POWER
Chapter 12: The Executive and Executive Power
1. The Crown
2. The Governor-General
3. The Executive Power of the Commonwealth
(a) Prerogative Power
(b) Nationhood Power
(c) Capacities of Contracting and Spending
(d) Executive Power Conferred by Statute
4. Control of the Executive
(a) Responsible Government
(b) Constitutional Writs
Chapter 13: The High Court
1. Inception
2. Appointment and Removal of Judges
(a) Appointment
(b) Removal
3. Jurisdiction
(a) Appellate Jurisdiction
(b) Original Jurisdiction
(c) ‘Matters’
(d) Standing
(e) Justiciability
4. Deciding Constitutional Cases
(a) Precedent and Overruling
(b) Invalidity and Consequences
PART 5: THE JUDICIARY AND JUDICIAL POWER
Chapter 14: Separation of Federal Judicial Power
1. Federal Judicial Power May Only Be Exercised by Courts
2. Federal Courts May Only Exercise Judicial Power
3. Defining Judicial Power
4. Judicial Power and Administrative Tribunals
5. Exceptions to the Boilermakers Case
(a) Military Tribunals
(b) Delegation of Judicial Power
(c) Persona Designata Rule and Incompatibility Limit
6. Legislative Usurpation and Interference

Chapter 15: Chapter III and the States
1. The Separation of State Judicial Power
2. Incompatibility and the Kable Doctrine
(a) Kable v DPP (NSW)
(b) Aftermath and Scope
3. Defining and Essential Characteristics of Courts
(a) Judicial Appointments and Conditions
(b) Duty to Give Reasons
(c) Decisional Independence
(d) Supervisory Jurisdiction
4. Federal Jurisdiction in State Courts and Tribunals
Chapter 16: Chapter III and Restrictions on Liberty
1. Foundations: Lim and Kable
2. Protective Detention
3. Immigration Detention and Citizenship Revocation
(a) Immigration Detention
(b) Citizenship Revocation
4. Preventative Justice
(a) Continued Detention of Serious Offenders
(b) Preventative Justice Broadened: Risk-Based Control and Detention
Chapter 17: Judicial Process
1. Foundational Principles
2. Retrospectivity
3. Equal Justice
4. Procedural Fairness
(a) A Fair Criminal Tria;
(b) Secrecy and Adversarial Justice
PART 6: THE PARLIAMENT AND LEGISLATIVE POWER
Chapter 18: Federal Parliament
1. Composition of the Federal Parliament
2. Voting and Elections
(a) Voting
(b) Express Right to Vote
(c) Implied Right to Vote
(d) Voter Equality
(e) Party Registration
(f) Territory Senators
3. Eligibility for Election
4. Resolving Deadlocks
Chapter 19: Characterisation
1. Characterisation
2. Dual Characterisation
3. Interaction between Heads of Power
4. Subject Matter and Purpose Powers
5. Subject Matter Powers
(a) Sufficient Connection

(b) The Role of Purpose
(c) Incidental Powers
6. Proportionality – Purpose Powers, Incidental Power and Limitations
(a) Purpose Powers
(b) Purpose and the Implied Incidental Power
(c) Constitutional Limitations
Chapter 20: Economic Powers
1. The Trade and Commerce Power
(a) The Meaning of ‘Trade and Commerce’
(b) The Distinction between Interstate and Intrastate Trade and Commerce Power
2. The Corporations Power
(a) Which Corporations?
(b) What is the Scope of the Corporations Power?
Chapter 21: Defence Power
1. General Principles
2. War
3. Post-War
4. Peace
5. The Communist Party Case
6. Terrorism
Chapter 22: External Affairs Power
1. Incorporation of International Law
2. External Affairs
(a) Matters External to Australia
(b) Relations with Other Countries
(c) International Law Other than Treaties
3. Implementing Treaties
(a) First Approaches
(b) The Expanding Power
(c) The Powers Confirmed
(d) International Recommendations
Chapter 23: Immigration and Aliens Powers
1. The Immigration Power
2. Naturalisation and Aliens
(a) Citizenship
(b) Persons Vorn in the UK and Colonies
(c) Persons Born in Australia
(d) Aboriginal People
Chapter 24: Races Power
1. The Races Power from Federation to 1967
2. Towards a Commonwealth Power Regarding Aboriginal People
3. Special Laws Deemed Necessary for People of Any Race
4. For the Benefit of a Race?
5. The Legacy of the 1967 Referendum

Chapter 25: Taxation and Grants
1. The Taxation Power
(a) What is a Tax?
(b) Fees for Services
(c) Arbitrary Exactions
2. The Grants Power
(a) Uniform Tax Cases
(b) Limits on the Power
PART 7: LIMITS ON POWER
Chapter 26: Intergovernmental Immunities
1. Intergovernmental Immunities
2. State Immunity from Commonwealth Laws
(a) The Melbourne Corporation Principle
(b) Restatement I: Two Limbs
(c) Restatement II: One Principle
3. Commonwealth Immunity from State Laws
Chapter 27: Human Rights
1. Human Rights
2. Bills of Rights
3. Trial by Jury
4. Freedom of Religion
5. Rights of Out-of-State Residents
Chapter 28: Economic Freedoms
1. Freedom of Interstate Trade, Commerce and Intercourse
(a) Isaacs, Dixon and Barwick
(b) The Whitfield Thunderbolt
(c) Cole’s New World
(d) ‘Intercourse’ Among the States
2. Acquisition of Property on Just Terms
(a) Property
(b) Laws with Respect to the Acquisition of Property
(c) Just Terms
Chapter 29: Freedom of Political Communication
1. The Murphy Catalyst
2. Launch of the Implied Freedom
3. Expansion and Division
4. The Implied Freedom Confirmed
5. Development of the Implied Freedom
(a) Communication Beyond Speech
(b) Need for a Burden on ‘Pre-existing Rights’?
(c) Legitimate Means and Legitimate End
(d) Redefining the Second Lange Question
6. The Implied Freedom after McCloy
7. Movement and Association
PART 8: CONSTITUTIONAL CHANGE
Chapter 30: Constitutional Change

1. Amending the Constitution
2. The Referendum Record
3. An Australian Republic
4. Aboriginal and Torres Strait Islander Voice
Appendix
Index